F. THE RECORD ON APPEAL

216

Rule 25: Completion and Transmission of the Record.

(a) Time for Completion of the Record; Duty of the Parties. The record on appeal shall be assembled, numbered and completed by the clerk of the trial court within 45 days after filing of the transcript or statement prepared in accordance with Rule 24(b) or 24(c) or, if no transcript or statement is to be filed, within 45 days after filing of appellant's notice under Rule 24(d) that no transcript or statement is to be filed, unless the time is extended by an order entered under subdivision (d) of this rule or if proof of service of the notice of appeal has not been filed. Unless the time has been extended by order, if the appellant fails to file within 60 days from the filing of the notice of appeal either the transcript or statement of evidence prepared pursuant to Rule 24(b) or 24(c) or the notice under Rule 24(d) that no transcript or statement is to be filed, the clerk of the trial court shall provide written notice within 10 days to the clerk of the appellate court of the appellant’s failure to comply with Rule 24(b) or (c) or (d), with a copy provided to counsel and pro se parties. After the filing of the notice of appeal the parties shall comply with the provisions of Rule 24 and shall take any other action necessary to enable the clerk to complete the record. The clerk of the trial court shall number the pages of the documents comprising the record and shall prepare for transmission with the record a list of the documents correspondingly numbered and identified with reasonable definiteness. Copies of all papers filed in the trial court, except the transcript or statement of the evidence or proceedings and exhibits, shall be bound together in chronological order; such bound volume (or, if more than one bound volume, the first such volume) shall contain a table of contents listing in chronological order all of the papers filed in the trial court with each document’s corresponding page number.

Exhibits shall be compiled in numerical order and bound in a volume or volumes separate from the volume of papers filed in the trial court and separate from the transcript or statement of the evidence or proceedings. The volume of exhibits shall contain a table of contents listing all exhibits, whether or not they are included in the record. Each exhibit to be included in the record shall be securely stapled to a blank page, or placed in a durable envelope which shall be securely stapled to a blank page, or placed within a plastic sheet protector; each such page or plastic sheet protector then shall be bound within the volume of exhibits. If an exhibit is not included in the record pursuant to subdivision (b) of this rule, or if an exhibit is included in the record but cannot be bound into the volume of exhibits due to the nature of the exhibit, the trial court clerk shall include in numerical order in the volume of exhibits a page indicating the number of the exhibit, a description of the exhibit, and a statement of the reason the exhibit is not contained in the volume of exhibits. All exhibits which are to be included in the record but which cannot be bound in the volume of exhibits due to the nature of the exhibits shall be placed securely in a durable envelope or other suitable container, which shall be labeled with the style of the case, the docket number, and the exhibit number of the exhibit contained therein.

(b) Duty of Clerk to Transmit the Record. When the record is complete for purposes of the appeal, the clerk of the trial court shall transmit the record to the clerk of the appellate court and shall transmit therewith the list identifying the documents required by subdivision (a) of this rule. Documents of unusual bulk or weight and physical exhibits, other than documents, shall not be transmitted by the clerk. The clerk of the trial court shall notify the parties if any documents or physical exhibits are not to be transmitted. The clerk of the trial court shall transmit any such documents or physical exhibits if directed to do so by a party or the clerk of the appellate court. A party must make advance arrangements with the clerks for the transportation and receipt of exhibits or documents of unusual bulk or weight.

Transmission of the record is effected when the clerk of the trial court mails or otherwise forwards the record to the clerk of the appellate court. The clerk of the trial court shall indicate by endorsement on the face of the record or otherwise the date upon which it is transmitted to the appellate court.

(c) Duty of Clerk to Make Record Available to Prepare Appellate Papers. An attorney may request the clerk of the appellate court to transmit the record for the purpose of preparing appellate papers. The clerk shall comply with the request by making the record available at the clerk's office or by sending the record to the attorney at the attorney's expense. Upon receiving the record, the attorney is responsible for its safekeeping and shall return the record to the clerk of the appellate court not later than the day upon which the party's brief is to be filed.

The attorney shall return the record to the clerk in its entirety and in an organized manner, with all volumes of the record intact and with all exhibits accounted for. In the event the returned record is either incomplete or in disarray, the appellate court in its discretion may require the attorney to pay the cost of reconstructing the record and/or may suspend the attorney’s privilege to check out records in the future. The clerk shall keep a written account of requests for and return of the record.

Pro se litigants shall be allowed to remove the record from the appellate clerk’s office only upon order of the appellate court. However, pro se litigants may inspect the record at the appellate clerk’s office pursuant to Supreme Court Rule 34.

(d) Extension of Time for Completion of the Record. If the record cannot be completed within the time permitted by subdivision (a) of this rule, the clerk of the trial court shall request an extension of time from the appellate court to which the appeal has been taken. The request shall set forth the reason for the requested extension and must be made within the time originally prescribed for completing the record or within an extension previously granted. The time for completing the record shall not be extended to a day more than 60 days after the date of the filing of the transcript or statement prepared in accordance with Rule 24(b) or 24(c) or the appellant's notice filed in accordance with Rule 24(d). In the event of the failure of the clerk of the trial court to complete the record within the time allowed, the clerk of the appellate court shall notify the trial court and take such other steps as may be directed by the appellate court.

(e) Retention of the Record in the Trial Court by Order of the Court. If the record or any part thereof is required in the trial court for use there pending the appeal, the trial court may make an order to that effect, and the clerk of the trial court shall retain the record or parts thereof subject to the request of the appellate court. The clerk of the trial court shall transmit a certified copy of the order together with such parts of the original record as the trial court shall allow and certified copies of any retained parts.

(f) Stipulation of Parties that Parts of the Record Be Retained in the Trial Court. The parties may agree by written stipulation filed in the trial court that designated parts of the record shall be retained in the trial court unless thereafter the appellate court shall order or any party shall request their transmittal. The parts thus designated shall nevertheless be a part of the record on appeal for all purposes.

(g) Record for Preliminary Hearing in the Appellate Court. If prior to the time the record is transmitted a party desires to make in the appellate court a motion or application for an order appropriately granted by the appellate court, the clerk of the trial court shall transmit to the appellate court such parts of the record or certified copies thereof as any party shall designate.

(h) Return of Record to Trial Court for Non-Compliance. If the clerk of the appellate court determines that the record transmitted to the appellate court fails to comply with the provisions of these rules governing the preparation, completion, and transmission of the record, the clerk is authorized to return the record to the trial court with a notification to the clerk of the trial court as to the specific lack of compliance with the rules. In such cases, the clerk of the trail court shall promptly remedy the lack of compliance and then promptly transmit the modified record to the clerk of the appellate court.

[As amended effective July 1, 1980; and by order entered January 26, 1999, effective July 1, 1999, and by order entered January 31,2003, effective July 1, 2003, and by order filed January 6, 2005, effective July 1, 2005.]

Advisory Commission Comments.

After the transcript or statement prepared in accordance with Rule 24(b) or 24(c) has been filed with the clerk of the trial court, or after a notice is filed in accordance with Rule 24(d), the clerk must assemble, number and complete the record within 45 days after filing of the transcript or statement or notice. If unable to complete the record within 45 days, the clerk, not one of the parties, must request an extension from the appellate court to which the appeal has been taken. Under Rule 40(g), the clerk forfeits the clerk's entire cost of preparing and transmitting the record, or such portion thereof as appropriate, if the clerk fails to complete the record on appeal within the time specified in this rule. When the record is complete for purposes of appeal, the clerk of the trial court transmits the record to the clerk of the appellate court.

Advisory Commission Comments [1980].

Subdivision (a). Rule 25(a) makes clear that the clerk is not required to bind together the transcript of evidence with the other parts of the record.

Advisory Commission Comments [2003].

Subdivision (a). The new second sentence covers situations where lawyers take no action concerning the transcript of evidence after notice of appeal is filed.

Advisory Commission Comments [2004].

Termination of Parental Rights Proceedings. Rule 8A imposes special requirements governing the appeal of any termination of parental rights proceeding. In particular, Rules 8A(e) and 8A(f) impose special provisions regarding the completion and transmission of the record in such an appeal.

Advisory Commission Comments [2005].

Subdivision (a). The amendment to subdivision (a) changes the manner in which the exhibits included in the record are transmitted to the appellate court. Because individual exhibits occasionally are lost by attorneys who check out the record or by appellate court personnel, the rule is amended to require that the exhibits to the extent possible be compiled into bound volumes separate from the transcript of the evidence or proceedings. The Commission believes that having the original exhibits bound into volumes will reduce the possibility that an individual exhibit will be lost.

Because individual exhibits occasionally are lost after the record is transmitted to the appellate court, attorneys are well-advised to retain duplicates of all exhibits pending the final disposition in the case. If the parties have duplicates of the exhibits, a lost exhibit can be replaced with relative ease; on the other hand, if neither party has a copy of the missing exhibit, it might not be possible to replace the missing exhibit. In the latter case appellate review of the case can be adversely affected.

Subdivision (c). The appellate court clerk’s experience shows that some attorneys have returned records to the clerk with bound volumes of the record disassembled, with exhibits missing, or with the components of the record disorganized. The purpose of the amendment to the first paragraph of subdivision (c), requiring attorneys to return the record intact and in an organized manner, is two-fold: (1) to assist the clerk’s personnel in efficiently verifying that each record returned to the appellate clerk is complete; and (2) to assist the appellate court, which subsequently will be reviewing the record when deciding the appeal.

The second paragraph of subdivision (c) is amended to refer to Rule 34, Rules of the Tennessee Supreme Court, governing access to appellate judicial records.

Advisory Commission Comment [2007].

A transcript or statement of the evidence must be filed with the trial court clerk within 60 days after the filing of the notice of appeal unless extended by the court. The period was formerly 90 days.

Advisory Commission Comment [2014]. Tenn. R. App. P. 25(a) also was amended to require that the bound volumes(s) of the papers filed in the trial court include a table of contents listing those papers in the order in which the papers were filed in the trial court. Prior to the adoption of the amendment, the practice among trial court clerks varied, with some clerks preparing a table of contents in chronological order, while others prepared a table of contents in alphabetical order (by the clerk’s description of each document). Having a table of contents arranged in chronological order greatly assists the appellate court in its efficient review of the record.

Subdivision (h). Tenn. R. App. P. 25 was amended to add subdivision (h), authorizing the clerk of the appellate court to return to the trial court any record that fails to comply with the provisions of the Rules of Appellate Procedure governing the preparation, completion, and transmission of the record. See also Tenn. R. App. P. 40(i) (providing that the trial court clerk’s statutory fee shall be forfeited for failing to complete and transmit the record on appeal in the time and manner provided in these rules); Aclin v. Speight, 611 S. W.2d 54, 56 (Tenn. Ct. App. 1980) (disallowing trial court clerk’s costs because of inclusion of extraneous documents in the record on appeal). Like the amendments to subdivision (a), this amendment was intended to promote the appellate court’s efficient review of the record.